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COA: Cops invade no expectation of privacy by looking into yard visible from road

State v. Adam Blaine Anderson, 2018AP718, 7/23/19, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

A sheriff’s deputy saw Anderson, who had an outstanding warrant, in the yard of an a acquaintance with whom he was staying. Specifically, the sheriff saw him by means of a live surveillance video; they’d installed a camera on a telephone pole across the street as part of an investigation into meth dealing. He alerted other officers, who showed up at the residence and eventually, after a chase, arrested Anderson.

Anderson argues that the deputy’s remote observation of him was a Fourth Amendment search, and that it was unreasonable because there was no search warrant and the area he was standing was within the home’s curtilage. Calling the argument “scattershot, difficult to follow, and minimally developed,” the court of appeals concludes there was no search, either under the reasonable-expectation-of-privacy rubric or the lately-in-vogue property/trespass theory. (¶¶14-18).

Of particular note: the yard was viewable from the public street, enclosed only by a “see-through wire” fence and bordered by some trees. (¶19). So, it’s hard to argue a person would reasonably expect not to be observed there. And, the court distinguishes Kyllo v. United States, 533 U.S. 27, 34 (2001), in which the officers used thermal imaging technology to “see” through the walls of a residence; here, the camera used showed only what anyone could have seen, at least if they had a pair of ordinary binoculars. (¶18).

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